Halitsky v. Syosset Hospital , 38 Misc. 2d 345 ( 1963 )

Mario Pittoni, J.

The petitioners, duly licensed physicians affiliated with the Health Insurance Plan (referred to as HIP), a nonprofit health insurance corporation, apply for an order pursuant to article 78 of the Civil Practice Act: (1) To annul and vacate the revocation of their appointments to the respondent hospital’s staff; (2) to prohibit the hospital from excluding or expelling them from staff membership; (3) to direct the hospital to grant them full professional privileges; (4) to prohibit the hospital from curtailing,' diminishing or terminating their professional privileges; (5) to order the hospital to expunge from its records the hospital actions herein; and (6) to temporarily enjoin the hospital. The petitioners base their plea on the Nassau County Administrative Codé, as amended by section 21-8.0 on October 29,1962.

The respondent hospital has countered by a special appearance, and by a motion to set aside the service as insufficient under section 222-a of the Civil Practice. Act and to dismiss for failure to exhaust the administrative remedy provided by the very County Administrative Code amendment invoked by the petitioners.

The petition must be dismissed because the petitioners have failed to exhaust their administrative remedies as provided by the County Administrative Code, as amended by subdivisions 4-c-k of section 21-8.0. Those subdivisions permit judicial review by an aggrieved party after consideration and determination by the “ Hospital Review Board ” created by the code. Thus, an article 78 proceeding is not" available to review the hospital’s actions herein because they “ can be adequately reviewed by an appeal to * * * some other body” (Civ. Prac. Act, § 1285, subd. 4).

It must also be observed that service of the order to show canse was not sufficient because no member of the limited partnership that owns the respondent hospital was served with the order (Civ. Prac. Act, § 222-a). Service under this article 78 proceeding may be, by order to show cause, different in manner than by personal service of a summons (Civ. Prac. Act, § 1289). However, that section does not change the persons who must be served under section 222-a of the Civil Practice Act.

This petition is dismissed and the temporary stay is vacated.